[EL] ELB News and Commentary 6/20/20

[Rick Hasen]

Age Discrimination in Texas Absentee Voting under 26th Amendment Teed Up for Supreme Court Review<https://electionlawblog.org/?p=112412>
Posted on June 19, 2020 5:35 pm<https://electionlawblog.org/?p=112412> by Rick Hasen<https://electionlawblog.org/?author=3>

Earlier this week, I wrote In Risky Move, Texas Democrats Appeal 5th Circuit Absentee Voting Decision to Supreme Court, Claiming 26th Amendment Violation<https://electionlawblog.org/?p=112304> about this applicatio<https://www.supremecourt.gov/DocketPDF/19/19-1389/145691/20200616115437798_19A-__%20Application%20to%20Vacate-2.pdf>n filed by Texas Democrats in Texas Democratic Party v. Abbott.<https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/19-1389.html> Justice Alito has now asked for the state to respond by June 22.

But Texas Democrats have also asked the Supreme Court to let the case jump the queue and address the merits now, filing a petition for writ of certiorari before judgment.<https://www.supremecourt.gov/DocketPDF/19/19-1389/145696/20200616121738042_No.%2019-__%20PetitionForAWritOfCertiorari-2.pdf> They make they following point about timing:

Moreover, this Court recently reiterated that “lower federal courts should ordinarily not alter the election rules on the eve of an election.” Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S.Ct. 1205, 1207 (2020) (per curiam) (citing Purcell v. Gonzalez, 549 U.S. 1 (2006) (per curiam)). The only way to prevent those eleventh-hour alterations while still protecting citizens’ fundamental right to vote is for this Court to grant review sufficiently in advance of the election. And when the constitutional claim arises in an election year, certiorari before judgment is the only way to achieve this. Right now, while the Purcell principle might have some bearing on whether the preliminary injunction should be reinstated for the July primary, the November general election is nearly five months away and Purcell poses no barrier to petitioners’ obtaining relief.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Preempting Politics: State Power and Local Democracy”<https://electionlawblog.org/?p=112409>
Posted on June 19, 2020 5:14 pm<https://electionlawblog.org/?p=112409> by Rick Hasen<https://electionlawblog.org/?author=3>

Joshua Sellers and Erin Scharff have posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3616451> on SSRN (forthcoming, Stanford Law Review). Here is the abstract:

States are increasingly responding to local governments’ actions with preemptive legislation. Scholars have tracked this trend through detailed examinations of laws preempting a variety of local government regulations. This Article analyzes a distinct instantiation of state preemption: states’ preemption of local governments’ structural authority, which we term “structural preemption.” Structural authority refers to the autonomy of local governments to design and modify their government institutions and the terms of local political participation. Structural preemption raises fundamental concerns about democratic design, political entrenchment, and political participation that directly implicate democratic outcomes.

The Article proceeds as follows. Part I provides background on local authority and state preemption generally, with a particular focus on state preemption’s recent substantive manifestations. It then discusses structural preemption specifically and why it presents distinct issues. The Part closes with a brief overview of structural preemption doctrine. Part II documents recent structural preemption bills proposed in or enacted by state legislatures. Part III explicates four values as paramount when thinking about structural preemption:

(1) administrative cost,

(2) democratic accountability,

(3) democratic deliberation, and

(4) pluralism.

Part IV then bolsters the normative case for these four values by considering their application in two structural preemption contexts.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Kentucky braces for possible voting problems in Tuesday’s primary amid signs of high turnout”<https://electionlawblog.org/?p=112407>
Posted on June 19, 2020 2:55 pm<https://electionlawblog.org/?p=112407> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/politics/kentucky-braces-for-possible-voting-problems-in-tuesdays-primary-amid-signs-of-high-turnout/2020/06/19/b7b960ce-b199-11ea-8f56-63f38c990077_story.html?utm_campaign=wp_politics&utm_medium=referral&utm_source=rss>:

Fewer than 200 polling places will be open for voters in Kentucky’s primary Tuesday, down from 3,700 in a typical election year. Amid a huge influx in requests for mail-in ballots, some voters still had not received theirs days before they must be turned in. And turnout is expected to be higher than in past primaries because of a suddenly competitive fight for the Democratic Senate nomination.

The scenario has voting rights advocates and some local elections officials worried that the state is careening toward a messy day marked by long lines and frustrated voters — similar to the scenes that have played out repeatedly this spring as the novel coronavirus<https://www.washingtonpost.com/health/2020/02/28/what-you-need-know-about-coronavirus/?itid=lk_inline_manual_3> pandemic has disrupted the 2020 primaries.

Because of a shortage of workers willing to staff voting sites during the health crisis, each of the commonwealth’s 120 counties is opening a very limited number of polling locations. The two largest counties will have just one in-person location each.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Congress must act now to help states with vote-by-mail in November, experts say”<https://electionlawblog.org/?p=112405>
Posted on June 19, 2020 9:35 am<https://electionlawblog.org/?p=112405> by Rick Hasen<https://electionlawblog.org/?author=3>

Roll Call:<https://www.rollcall.com/2020/06/19/congress-must-act-now-to-help-states-with-vote-by-mail-in-november-experts-say/>

The November presidential and congressional elections are a little more than four months away, and Congress must act now to help states prepare for a surge in Americans seeking to vote by mail because of pandemic-driven fears that are likely to keep them from voting in person, according to election experts, advocates and lawmakers.

As many as 30 states have already lowered barriers for voters seeking to mail in their ballots because of COVID-19. Some, like Nevada, have gone as far as sending pre-printed mail-in ballots to all registered voters in some counties.

But states scrambling to scale up voting by mail also need to be prepared for voters to show up in person at regular polling places because of glitches in the mailing process or a failure to receive mail-in ballots in advance. That could increase costs not only for new equipment but for staffing to handle both ways to vote, experts say.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“SETTLED: Arizona’s Election Day Deadline For RECEIVING Mailed In Ballots Remains… For 2020, At Least (READ Settlement)”<https://electionlawblog.org/?p=112403>
Posted on June 19, 2020 9:32 am<https://electionlawblog.org/?p=112403> by Rick Hasen<https://electionlawblog.org/?author=3>

AZ Law reports<https://arizonaslaw.blogspot.com/2020/06/settled-arizonas-election-day-deadline.html>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Twitter Labels Trump Tweet About ‘Racist Baby’ as Manipulated Media”<https://electionlawblog.org/?p=112401>
Posted on June 19, 2020 8:28 am<https://electionlawblog.org/?p=112401> by Rick Hasen<https://electionlawblog.org/?author=3>

NY Times:<https://www.nytimes.com/2020/06/18/technology/trump-tweet-baby-manipulated.html>

Twitter added a warning to a post from President Trump about a racist baby on Thursday, saying it contained manipulated media designed to mislead people.

Mr. Trump’s tweet, which he posted earlier on Thursday, featured a video of two toddlers running down a sidewalk. The video had been altered to appear as if CNN had broadcast it, along with a fake chyron that claimed, “Racist baby probably a Trump voter.” The video went on to accuse “fake news” of stoking misinformation.

Mr. Trump sourced the video from a popular pro-Trump meme creator who goes by the name CarpeDonktum.
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Posted in social media and social protests<https://electionlawblog.org/?cat=58>


In Dueling Concurring Opinions to 5th Circuit En Banc Order Dismissing Case as Moot, Judges Costa and Willett Debate Whether 3-Judge Courts Get Convened for Statutory Redistricting Challenges<https://electionlawblog.org/?p=112399>
Posted on June 19, 2020 8:24 am<https://electionlawblog.org/?p=112399> by Rick Hasen<https://electionlawblog.org/?author=3>

Setting forth a battle<http://www.ca5.uscourts.gov/opinions/pub/19/19-60133-CV4.pdf> for the future (via How Appealing<https://howappealing.abovethelaw.com/2020/06/19/#123305>).
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Posted in Voting Rights Act<https://electionlawblog.org/?cat=15>


“Eighth Circuit Rules that U.S. District Court Judge Was Correct When She Put Arkansas Libertarian Party on Ballot Last Year”<https://electionlawblog.org/?p=112397>
Posted on June 19, 2020 8:19 am<https://electionlawblog.org/?p=112397> by Rick Hasen<https://electionlawblog.org/?author=3>

BAN reports.<http://ballot-access.org/2020/06/18/eighth-circuit-rules-that-u-s-district-court-judge-was-correct-when-she-put-arkansas-libertarian-party-on-ballot-last-year/>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Two Republican EAC Commissioners on “True the Vote” Podcast: “U.S. Election Assistance Commissioners Join Voter Suppression Group to Discourage Mail-In Voting”<https://electionlawblog.org/?p=112395>
Posted on June 19, 2020 8:15 am<https://electionlawblog.org/?p=112395> by Rick Hasen<https://electionlawblog.org/?author=3>

Alex Kotch<https://www.prwatch.org/news/2020/06/13589/us-election-assistance-commissioners-join-voter-suppression-group-discourage-mail>:

In late May, two Republican members of the U.S. Election Assistance Commission used a podcast<https://truethevote.org/redwhite-and-true-news-episode-2/> produced by True the Vote<https://www.sourcewatch.org/index.php/True_the_Vote>, a right-wing voter suppression group, to cast doubt on the security of mail-in voting for the upcoming November 2020 elections.

The Election Assistance Commission (EAC) is an independent, bipartisan commission, established in 2002 by the Help America Vote Act (HAVA) that serves as “a national clearinghouse” of election administration information.

True the Vote has close GOP ties and is known for its campaigns to purge voter rolls<https://www.propublica.org/article/a-reading-guide-to-true-the-vote-the-controversial-voter-fraud-watchdog>, push voter ID laws, and intimidate<https://www.demos.org/sites/default/files/publications/BulliesAtTheBallotBox-Final.pdf> voters<http://www.tucsonsentinel.com/nationworld/report/082012_voting_observers/voters-feel-intimidated-by-election-observers/>. The group is now recruiting ex-military and law enforcement officers<https://theintercept.com/2020/04/11/republican-poll-watchers-vote-by-mail-voter-fraud/> to patrol the polls in November under the guise of guarding against alleged voter fraud.

Christy McCormick<https://www.eac.gov/about-eac/commissioner-christy-mccormick> and Don Palmer<https://www.eac.gov/about-eac/commissioner-donald-palmer>, the two Republicans on the four-member EAC, spoke on the podcast with True the Vote founder Catherine Engelbrecht about mail-in voting. Engelbrecht describes the process as “a disaster waiting to happen,” claiming that millions of registered voters who should be struck from the rolls will receive ballots.
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Posted in Election Assistance Commission<https://electionlawblog.org/?cat=34>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“If Trump tried to steal the election, would enough Americans support him? Here’s what we know.”<https://electionlawblog.org/?p=112393>
Posted on June 19, 2020 8:03 am<https://electionlawblog.org/?p=112393> by Rick Hasen<https://electionlawblog.org/?author=3>

Ariel Malka and Christopher Federico for The Monkey Cage<https://www.washingtonpost.com/politics/2020/06/19/if-trump-tried-steal-election-would-enough-americans-support-him-heres-what-we-know/>.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“Protests push more companies to bolster voting efforts”<https://electionlawblog.org/?p=112391>
Posted on June 19, 2020 8:00 am<https://electionlawblog.org/?p=112391> by Rick Hasen<https://electionlawblog.org/?author=3>

Axios reports.<https://www.axios.com/companies-promote-voting-election-day-f469b022-c660-4924-afb0-265579cb0792.html?utm_source=newsletter&utm_medium=email&utm_campaign=newsletter_axiosam&stream=top>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Worrisome Trump Interview with Politico: “‘My biggest risk’: Trump says mail-in voting could cost him reelection”<https://electionlawblog.org/?p=112389>
Posted on June 19, 2020 7:59 am<https://electionlawblog.org/?p=112389> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/news/2020/06/19/trump-interview-mail-voting-329307>

President Donald Trump called mail-in voting the biggest threat to his reelection and said his campaign’s multimillion-dollar legal effort<https://www.politico.com/news/2020/04/03/trump-2020-election-legal-battle-coronavirus-162152> to block expanded ballot access could determine whether he wins a second term.

In an Oval Office interview Thursday focusing on the 2020 election, the president also warned his party in blunt terms not to abandon him and cast Hillary Clinton as a more formidable opponent than Joe Biden, despite Biden’s commanding lead in polls.

The president’s assertion that mail-in voting will endanger his reelection comes as states across the country are rushing to accommodate remote voting in response to the coronavirus pandemic. Millions of voters could be disenfranchised if they decide to stay home on Election Day rather than risk contracting the virus at crowded polling stations.

But Trump and his campaign argue, despite a lack of evidence<https://www.politico.com/states/florida/story/2020/05/21/a-trump-election-conspiracy-collapses-1285442>, that widespread mail-in voting will benefit Democrats and invite fraud. The Republican Party is spending tens of millions of dollars<https://www.politico.com/news/2020/05/07/trump-democrats-voting-laws-243517> on a multifront legal battle.

“My biggest risk is that we don’t win lawsuits,” Trump said. “We have many lawsuits going all over. And if we don’t win those lawsuits, I think — I think it puts the election at risk.”

Trump was asked a two-part question during the interview: Would a substantial amount of mail-in voting — which is widely expected because of coronavirus — cause him to question the legitimacy of the election? And would he accept the results no matter what?

“Well, you can never answer the second question, right? Because Hillary kept talking about she’s going to accept, and they never accepted it. You know. She lost too. She lost good.” Clinton conceded the day after the 2016 election.

Trump struck a firmer note last week in an interview with Fox News, when he said he would leave office peacefully<https://www.politico.com/news/2020/06/12/trump-says-will-leave-office-peacefully-if-he-loses-315736> if he lost.
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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>


“The Damage of Trump’s Voter-Fraud Allegations Can’t Be Undone; A new study suggests that even fact-checking the president’s false claims won’t restore confidence in elections.”<https://electionlawblog.org/?p=112387>
Posted on June 19, 2020 7:51 am<https://electionlawblog.org/?p=112387> by Rick Hasen<https://electionlawblog.org/?author=3>

David Graham<https://www.theatlantic.com/ideas/archive/2020/06/election-confidence-fraud/612358/> in The Atlantic:

It’s too early to say who will win the 2020 presidential election, but there’s a good chance that one loser will be faith in the electoral system. President Donald Trump is alleging—as he did four years ago, though sooner in the cycle this time and with greater vehemence but no more evidence—that the voting system is subject to widespread fraud. Should he win, it will give him another four years to undermine the system from within<https://www.theatlantic.com/ideas/archive/2020/05/trump-out-open/611875/> and assail voting-rights protections<https://www.theatlantic.com/politics/archive/2018/01/trumps-voter-fraud-commission-is-disbanded/549641/>. Should he lose, his defeat is likely to reinforce the spurious claims of fraud he is spreading now.

According to new research<https://www.dartmouth.edu/~nyhan/voter-fraud.pdf>, unfounded claims of fraud from Trump and his allies significantly undermine faith in the American election system, especially among voters who support him. Worse, the damage seems to be resistant to repair by fact-checking.

“It may be that confidence in the election system is a soft target,” Brendan Nyhan, a political-science professor at Dartmouth and one of the authors of the new paper, told me. “It’s complicated, hard to observe, unintuitive, and relies on trust. Trust in institutions seems to be easier to destroy than to build.”
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>


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